ABSTRACT: In April 2008 the European Commission published a "White Paper on
Damages actions for breach of the EC antitrust rules" (COM2008 (165)
final). This article focuses mainly on two issues: the passing-on
defence and standing of indirect purchasers and the compatibility of
efforts to enhance the effectiveness of private actions for damages
with leniency programmes offered by the EC Commission and national
competition authorities.

As regards the passing-on defence and the standing of indirect
purchasers, it is argued that the EC Commission's approach in the white
paper is in theory the best solution. Yet, due to practical reasons it
is suggested that in principle the passing-on defence should not be
accepted and that indirect purchasers should not be encouraged to sue.
In order to avoid a conflict with the ECJ's decisions in Courage und
Manfredi, indirect purchasers should however not be categorically
denied standing but only be discouraged from claiming damages by, for
example, not alleviating their burden of proof.

Regarding the compatibility of the efforts to promote private
enforcement with the leniency programmes, the EC Commission's
suggestion to limit "the civil liability of the immunity recipient to
claims by his direct and indirect contractual partners" is not
considered a viable solution. In this paper it is argued that the best
way to avoid a conflict of aims is to modify the way liability is
apportioned between the cartel members, i.e. between the infringers of
EC competition law who are jointly and severally liable towards the
victims.

German law apportions liability equally between joint tortfeasors,
unless otherwise provided (section 426 I 1 BGB). This paper shows that
for the apportionment of liability between joint tortfeasors, German
law can take into account both the cartel member's market share (thus
incorporating the EC Commission's approach because the damages suffered
by direct and indirect purchasers reflect the cartel member's market
share) and the cartel member's contribution to uncovering the cartel.
The latter aspect leads to the suggestion that a reduction in the fine
imposed on a cartel member should lead to a parallel reduction in the
cartel member's share of liability as compared to the other members of
the cartel. The joint and several liability of all tortfeasors,
including the successful leniency applicants', towards the victims
remains unchanged.

De lege ferenda, however, it also seems justified to reduce the
successful leniency applicants' liability towards the victims of the
cartel accordingly. This conclusion is based upon the fact that the
leniency applicants give the victims something in return: the victims
receive the information necessary for them to recover their damages.

This approach, that was developed using German law as an example,
should also work in other jurisdictions. It is a common legal principle
that joint tortfeasors are jointly and severally liable towards their
victims and that the liability as between the tortfeasors is
apportioned according to the circumstances of the case.